Supreme Court loosens rules on complaints against lawyers
NASHVILLE (AP) — The state Supreme Court has declared one of its own rules unconstitutional, opening complaints against lawyers to greater public scrutiny.
In a case involving two unidentified lawyers, the court said its rule restricting public discussion of an official complaint against an attorney infringed on the free speech rights guaranteed by the constitutions of the United States and of the state of Tennessee.
In the case of two lawyers identified only as John Doe vs. Jane Doe, Jane accused John of unethical conduct and sent the letter to two other attorneys, a judge, and a trial court clerk.
That was a violation of the state Supreme Court’s rule regarding disciplinary proceedings for lawyers, which said none of the participants could discuss a complaint until it had reached a certain stage in the process. This case was not there yet.
Jane appealed, claiming her free speech rights had been infringed.
The court decided to review its rule, and agreed with Jane.
The state has an interest in protecting lawyers, judges and the bar in general from frivolous accusations, the court said, but it found that interest was not sufficiently compelling to override the free speech protections in the federal and state constitutions.
The court proposed a new rule to substitute for the one it declared unconstitutional. It will receive comment from interested parties before adopting the new rule permanently.
The new rule still keeps most of the records of the Board of Professional Responsibility closed. But it would loosen restrictions on what participants in such cases can say publicly.
The court joined unanimously in the opinion by Justice William M. Barker.
In protecting the bar from frivolous complaints, the court adopted the reasoning of a federal district court in Florida, which said in a similar case:
“The idea that the suppression of truthful criticism of lawyers would somehow enhance or protect the reputation of the bar is not persuasive. To the contrary, continuing the prohibitory effect of the rule after a grievance against an attorney is found to be meritorious is far more likely to engender suspicion than foster confidence.”
John Tarpley, president of the Tennessee Bar Association, said in a statement that lawyers supported the restriction because it protected against meritless complaints. But he thinks most will find it hard to argue with a “thorough, well-reasoned decision.”
“The court has decided that the constitution requires that the discipline process be more open, and we will work with the court and the Board of Professional Responsibility to meet that requirement,” he said.
Frank Gibson, the political editor of The Tennessean in Nashville and director of the Tennessee Coalition for Open Government, a coalition of media groups, applauded the ruling.
“One of the reasons open government is protected in the federal and state constitutions is to make it possible for citizens to know what government is doing so that if they don’t like it they can criticize it,” he said. “What you have here is a situation where the Supreme Court has said there is too much secrecy in this process, and that secrecy is not justified if it means citizens can’t speak out.”
Tom McCoy, a professor of law at Vanderbilt University who specializes in First Amendment issues, doesn’t think the change will have much of an effect.
“The public is going to know that a particular lawyer has been complained about earlier than it would have under the old rule, but it was going to get the information sooner or later anyway,” McCoy said.
He noted that while participants in these actions are now freer to talk, there are still libel laws to worry about.
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